US v. Antwain Price

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 0:12-cr-00374-JFA-1. [999522531]. [13-4216]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4216

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTWAIN GUANTERIO PRICE,
Defendant – Appellant.
--------------------------BRADLEY NELSON GARCIA,
Court-Assigned Amicus Counsel.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:12-cr-00374-JFA-1)

Argued:

December 9, 2014

Decided:

February 3, 2015

Before MOTZ and KING, Circuit Judges, and Arenda L. Wright
ALLEN, United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the opinion, in which Judge Motz and
Judge Allen joined.

ARGUED:
Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.
Tommie

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DeWayne Pearson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Bradley Nelson Garcia, O’MELVENY
& MYERS, LLP, Washington, D.C., as Court-Assigned Amicus
Counsel.
ON BRIEF: John H. Hare, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Gregory F. Jacob, Rakesh Kilaru,
O’MELVENY & MYERS, LLP, Washington, D.C., for Court-Assigned
Amicus Counsel.

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KING, Circuit Judge:
Antwain

Guanterio

Price

was

charged

in

the

District

of

South Carolina in May 2012 with knowingly failing to register as
a sex offender as required by the Sex Offender Registration and
Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a). 1
The single-count indictment alleged that Price was subject to
SORNA’s

registration

requirement

because

of

his

prior

South

Carolina conviction for the common law offense of assault and
battery of a high and aggravated nature (“ABHAN”).

Price sought

dismissal on the ground that his ABHAN conviction was not for a
“sex offense” under SORNA.

By order of August 2, 2012, the

district court denied Price’s motion, predicating its ruling on
the facts underlying the ABHAN conviction.

See United States v.

Price, No. 0:12-cr-00374 (D.S.C. Aug. 2, 2012), ECF No. 55 (the
“Denial Order”). 2

Price thereafter conditionally pleaded guilty

to

offense

the

prison.

§ 2250(a)
The

court

also

and

was

imposed

sentenced
a

life

to

term

two
of

years

in

supervised

1

SORNA is primarily codified at 42 U.S.C. §§ 16901-16962,
and a failure to register pursuant to its provisions violates 18
U.S.C. § 2250(a). As relevant here, § 2250(a) provides criminal
penalties for any person who “is required to register under
[SORNA],” “travels in . . . interstate commerce,” and “knowingly
fails to register or update a registration as required by
[SORNA].” 18 U.S.C. § 2250(a)(1), (2)(B), (3).
2

The Denial Order is found at J.A. 78-82.
(Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)

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release, based on its determination that the ABHAN conviction
was

for

a

“sex

offense”

under

section

5D1.2(b)(2)

of

the

Sentencing Guidelines.
Price

filed

jurisdiction
§ 1291.

a

timely

pursuant

to

notice
18

of

U.S.C.

appeal,

and

§ 3742(a)

we

and

28

possess
U.S.C.

On appeal, he maintains that the district court erred

in declining to dismiss the indictment and in calculating his
advisory Guidelines range for supervised release.

As explained

below, we are satisfied that the Denial Order properly applied
the

“circumstance-specific

approach”

(sometimes

called

the

“noncategorical approach”) in deciding that Price was subject to
SORNA’s registration requirement.

The court erred, however, in

ruling that Price’s § 2250(a) conviction was for a sex offense
under Guidelines section 5D1.2(b)(2).

We therefore affirm in

part, vacate in part, and remand for resentencing. 3

3

We ordered the parties to submit supplemental briefing in
this appeal to address recent authorities that might be
applicable, including Descamps v. United States, 133 S. Ct. 2276
(2013), and United States v. Hemingway, 734 F.3d 323 (4th Cir.
2013).
Because the government initially asserted that a
different approach applied to an analysis of Price’s dismissal
issue, we appointed amicus counsel (the “Amicus”) to argue the
position of the district court — namely, that the circumstancespecific approach was the correct analytical vehicle.
The
government thereafter submitted a letter under Federal Rule of
Appellate Procedure 28(j), altering its position and agreeing
with the Amicus that the circumstance-specific approach is
correct.
The Amicus has ably discharged his duties, and we
commend his efforts.

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I.
A.
We

first

address

Price’s

should have been dismissed.
factual

and

procedural

contention

that

his

indictment

Before delving into the relevant

background,

we

review

certain

legal

principles that are important to this issue.
1.
SORNA

establishes

a

comprehensive

regulatory

scheme

to

track and provide community notification regarding convicted sex
offenders.

Pursuant

thereto,

a

person

convicted

of

a

sex

offense must register in each state in which he resides, is
employed, or is a student.

See 42 U.S.C. §§ 16911(1), 16913.

If a sex offender changes his residence, employment, or student
status, he must update his registration within three business
days, so that the sex offender registry remains current.
§ 16913(c).
sex

offender

Id.

SORNA also requires each state to maintain its own
registry

that

conforms

to

SORNA’s

requirements.

Id. §§ 16911(10)(A), 16912(a).
Although SORNA “is a non-punitive, civil regulatory scheme,
both in purpose and effect,” noncompliance with the statute can
result in criminal prosecution under 18 U.S.C. § 2250(a).

See

United States v. Under Seal, 709 F.3d 257, 263 (4th Cir. 2013).
A

prerequisite

to

SORNA’s

registration

requirement

—

and

to

criminal penalties under § 2250(a) — is that the defendant has
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been convicted of a sex offense.
U.S.C.

§§ 16911(1),

includes

the

16913.

following

See 18 U.S.C. § 2250(a)(1); 42

Section

definitions

16911(5)(A)
of

a

“sex

of

Title

offense”

42
for

purposes of SORNA:
(i) a criminal offense that has an element involving a
sexual act or sexual contact with another; [or]
(ii) a criminal offense that is a specified offense
against a minor.
42

U.S.C.

§ 16911(5)(A)(i)-(ii). 4

Subsection

(5)(A)(ii)’s

reference to a “specified offense against a minor” is further
defined in subsection (7) of § 16911, which identifies multiple
offenses — such as kidnapping, child pornography, and criminal
sexual

conduct,

see

id.

§ 16911(7)(A)-(H)

—

and

contains

a

catch-all that encompasses “[a]ny conduct that by its nature is
a sex offense against a minor,” id. § 16911(7)(I).
2.
A person who fails to properly register violates 18 U.S.C.
§ 2250(a) if his prior conviction was for a sex offense within
the meaning of SORNA.

Therefore, a district court must examine

the underlying offense of conviction to determine whether it
satisfies

the

statutory

definition.

4

The

Supreme

Court

has

SORNA also defines a “sex offense” to include certain
specified federal and military offenses.
See 42 U.S.C.
§ 16911(5)(A)(iii)-(iv). Additionally, an attempt or conspiracy
to commit one of the enumerated sex offenses constitutes a sex
offense. Id. § 16911(5)(A)(v).

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developed three analytical frameworks that potentially control
the scope of materials that a court may consider in that regard,
as well as the focus of the court’s inquiry.
are

the

“categorical

approach,”
specific

and,

as

approach”

approach,”

previously
(also

the

“modified

mentioned,

known

Those frameworks

as

the
the

categorical

“circumstance“noncategorical

approach”).
First,

the

categorical

approach

focuses

solely

on

the

elements of the offense of conviction, comparing those to the
commonly understood elements of the generic offense identified
in the federal statute.

See Taylor v. United States, 495 U.S.

575, 602 (1990) (requiring court to “look only to the fact of
conviction and the statutory definition of the prior offense”).
The elements comprising the statute of conviction must be the
same as, or narrower than, those of the generic offense in order
to find a categorical match.
court

finds

“a

realistic

Id. at 599.
probability,

If, however, the
not

a

theoretical

possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime,” there is
no categorical match and the prior conviction cannot be for an
offense

under

the

Alvarez,

549

U.S.

approach

looks

federal
183,

squarely

193

statute.

at

(2007).
the

See

Gonzales

Because

elements

of

v.

Duenas-

the

categorical

the

offense

of

conviction, a reviewing court is precluded from examining the
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circumstances underlying the prior conviction.

See Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013) (“The key . . . is
elements, not facts.”).
Second, the modified categorical approach is an off-shoot
of the traditional categorical approach, and similarly focuses
on elements rather than facts.

The modified approach comes into

play if the defendant was previously convicted under a divisible
statute, meaning that the offense contains a set of alternative
elements.

See

circumstances,

Descamps,
the

133

reviewing

S.

Ct.

court

at

2281.

conducts

In

an

such

analysis

identical to the categorical approach, but with a detour.

That

is, the court is entitled to refer to certain documents from the
underlying case to discern which alternative element formed the
basis of conviction.

See Shepard v. United States, 544 U.S. 13,

19-20 (2005).

The documents that may be referenced are limited,

but include:

the indictment or information; the plea agreement

or transcript of the plea colloquy; the court’s formal legal
rulings

and

instructions.

factual

findings

of

a

See id. at 20, 26.

bench

trial;

and

jury

The focus of the modified

categorical approach remains squarely on the elements of the
prior

conviction,

entitled

to

however,

assess

whether

and
the

matches the federal statute.

8

the

reviewing

defendant’s

court
actual

is

not

conduct

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Finally,

the

noncategorical
altogether.

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circumstance-specific

approach)

is

a

different

approach

species

of

(or,
analysis

The circumstance-specific approach focuses on the

facts — not the elements — relating to the prior conviction.
That broader framework applies when the federal statute refers
“to the specific way in which an offender committed the crime on
a

specific

occasion,”

rather

than

to

the

Nijhawan v. Holder, 557 U.S. 29, 34 (2009).

generic

crime.

In utilizing the

circumstance-specific approach, the reviewing court may consider
reliable evidence concerning whether the prior offense involved
conduct

or

circumstances

that

are

required

by

the

federal

statute. 5
B.
Having
principles,
dismiss.

identified
we

turn

to

and
the

discussed
specifics

the
of

foregoing
Price’s

legal

motion

to

The relevant facts are not in dispute.
1.

On

May

13,

2010,

a

grand

jury

in

York

County,

South

Carolina, returned an indictment charging Price with a single

5

We are satisfied to utilize the term “circumstancespecific” to describe this third approach, adhering to the
example set by the Supreme Court in Nijhawan.
See 557 U.S. at
34 (using term “circumstance-specific” to describe analytic
framework “referring to the specific way in which an offender
committed the crime on a specific occasion”).

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count of criminal sexual conduct with a minor.

See S.C. Code

The indictment — which did not refer to an

Ann. § 16-3-655.

ABHAN offense — alleged that, on or about December 15, 2007,
Price

committed

“criminal

sexual

conduct

with

a

minor”

by

“commit[ting] a sexual battery” on a victim who was twelve years
old.

J.A.

23.

Price

subsequently

entered

into

plea

negotiations with the prosecution.
Pursuant to those negotiations, on July 15, 2010, Price
pleaded no contest to an ABHAN offense in the Court of General
Sessions

of

York

County.

In

the

plea

proceedings,

the

prosecutor represented that ABHAN was a lesser-included offense
of

the

charge

in

the

indictment.

At

the

time

of

Price’s

offense, ABHAN was a common law crime in South Carolina, the
elements of which included “the unlawful act of violent injury
to another, accompanied by circumstances of aggravation.”
State

v.

Easler,

489

S.E.2d

617,

624

(S.C.

1997). 6

See
The

“circumstances of aggravation” requirement of an ABHAN offense
could be satisfied in a number of ways, including

6

Although South Carolina codified ABHAN as a felony offense
effective June 2, 2010, see S.C. Code Ann. § 16-3-600(B)(1),
that enactment post-dated the commission of Price’s offense.
Thus, the common law crime of ABHAN is the only ABHAN offense
relevant to this appeal.
See United States v. Hemingway, 734
F.3d 323, 327 n.1 (4th Cir. 2013) (applying common law ABHAN
elements — rather than statutory ones — because offense conduct
occurred prior to enactment of ABHAN statute).

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use of a deadly weapon, infliction of serious bodily
injury, intent to commit a felony, disparity in age,
physical
condition
or
sex,
indecent
liberties,
purposeful infliction of shame, resistance of law
authority, and others.
Id. at 624 n.17.
During Price’s plea colloquy in the state court in 2010,
the prosecutor — apparently pursuant to an oral plea agreement
— summarized the factual basis for the ABHAN offense as follows:
These events occurred — reported to have occurred back
between 2007 and 2008. Initially a report was made to
the Akron Ohio Police Department that the step-father
of the minor who was . . . eleven at the time in Ohio
had been abused by Mr. Price, her step-father.
This
continued when the family moved to . . . Rock Hill,
York County, South Carolina.
The allegations were
alleged to have happened at that house as well as
another jurisdiction in South Carolina, and the victim
would’ve been twelve years old at the time and she
reported in 2009 that she had been abused and been
required to perform oral sex on this defendant.
J.A. 52.

Price responded in the affirmative when the state

court asked, “Do you agree if you went to trial those facts
would be what the State would present to the jury?”

Id.

The

court then accepted his no-contest plea to the ABHAN offense.
The court also accepted Price’s negotiated sentence, which was
for time served, but required that Price be placed on South
Carolina’s

central

registry

of

child

abuse

and

sex

offender

registry.
Following his release from state custody after his ABHAN
conviction

and

sentencing,

Price

11

moved

to

Georgia.

He

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registered there as a sex offender on July 27, 2010.

Around

November 1, 2010, Price moved to Ohio but failed to register as
a sex offender there.

As a result, the City of Akron issued a

warrant for his arrest on February 1, 2011.

Price, then a

fugitive, resided in Arizona from September 2011 until February
2012.

He moved back to South Carolina in February 2012, where

he again failed to register as a sex offender.

On March 17,

2012, Price was arrested on the basis of the Ohio warrant in
Rock Hill, South Carolina.
2.
On April 2, 2012, a criminal complaint was filed in the
District of South Carolina, alleging that Price had knowingly
failed to register as a sex offender, in contravention of 18
U.S.C. § 2250(a).
was

returned

on

The single-count indictment for that offense
May

1,

2012,

alleging

that

Price’s

South

Carolina ABHAN conviction in July 2010 was for a sex offense
under SORNA, and that he violated § 2250(a) by travelling in
interstate

commerce

and

failing

to

register

and

update

his

registration as a sex offender, as required by SORNA.
By motion of June 21, 2012, Price sought dismissal of the
indictment.

He therein argued that his ABHAN conviction was not

for a sex offense under SORNA, and therefore that he was not
subject to SORNA’s registration requirement.

The district court

denied Price’s dismissal motion on August 2, 2012, deeming the
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record “sufficient to indicate that [Price] was convicted of a
sex offense as defined by SORNA.”

See Denial Order 3.

The

court reasoned that it could review the record of Price’s ABHAN
conviction under the noncategorical approach — which we call the
circumstance-specific approach — relying on decisions of the
Ninth and Eleventh Circuits.

Id. at 4 (citing United States v.

Dodge, 597 F.3d 1347, 1354 (11th Cir. 2010) (en banc); United
States v. Mi Kyung Byun, 539 F.3d 982, 992 (9th Cir. 2008)).
Employing that approach, the court reviewed the facts underlying
Price’s ABHAN conviction, as reflected in the plea colloquy in
the York County proceedings.

That colloquy revealed that the

prosecutor had “recounted the facts of the offense:

defendant

forced his twelve year old step-daughter to perform oral sex on
him.”

Id. at 3.

Price “affirmatively answered that he knew

those facts would be presented to the jury if he went to trial,”
evidencing that he understood the ABHAN charge.

Id.

The court

observed that Price had agreed to register on the state sex
offender registry.

The court thus discerned “ample evidence to

indicate that the ABHAN plea in this case rested on indecent
liberties with a female as the aggravating circumstance, and
therefore constituted a sex offense.”

Id.

As a result, the

court concluded that Price was required to register under SORNA
and denied his motion to dismiss.

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On August 27, 2012, Price pleaded guilty in the district
court

to

violating

indictment.

18

U.S.C.

§ 2250(a),

as

charged

in

the

Nonetheless, Price reserved his right, pursuant to

Rule 11(a)(2) of the Federal Rules of Criminal Procedure, to
appeal the court’s denial of his motion to dismiss.
C.
The issue with respect to the dismissal motion is purely
legal and one that we review de novo:
err

in

applying

assessment

of

the

whether

Did the district court

circumstance-specific
Price’s

ABHAN

approach

its

satisfied

offense

to

the

statutory definition of a “sex offense” under SORNA?

See United

States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (“This
Court reviews de novo the district court’s denial of a motion to
dismiss
questions

an

indictment
of

circumscribed

where

law.”).
in

At

certain

the
the

denial

depends

outset,

respects.

As

that
the

solely

on

question

is

government

now

concedes, our decision in United States v. Hemingway, 734 F.3d
323,

333-34

(4th

Cir.

2013),

determined

that

the

common

law

offense of ABHAN — on which Price was convicted in York County
— is indivisible, rendering the modified categorical approach
inapplicable.

Additionally, because our review is de novo and

we “may affirm on any grounds apparent from the record,” United
States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005), we are
entitled to focus on the definition of a “sex offense” provided
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by 42 U.S.C. § 16911(5)(A)(ii) and its extended definition at
§ 16911(7)(I), as those provisions contain the definition of a
“sex offense” that is most relevant here.

Read together, they

define a “sex offense” as a criminal offense involving “[a]ny
conduct that by its nature is a sex offense against a minor.”
See 42 U.S.C. § 16911(5)(A)(ii), (7)(I). 7
1.
We must assess, then, whether the categorical approach or
the circumstance-specific approach applies to our analysis.

At

least two of our sister circuits have grappled with that very
question,

and

each

has

circumstance-specific

concluded

approach

—

that

which

what

they

we

refer

call
to

as

the
the

noncategorical approach — is applicable to an analysis under 42
U.S.C. § 16911(7).

See United States v. Dodge, 597 F.3d 1347,

1356 (11th Cir. 2010) (en banc) (holding that “courts may employ
a noncategorical approach to examine the underlying facts of a
defendant’s

offense,

to

determine

whether

a

defendant

has

committed a ‘specified offense against a minor’ [under 42 U.S.C.
§ 16911(7)]”),

cert.

denied,

131

S.

Ct.

457

(2010);

United

States v. Mi Kyung Byun, 539 F.3d 982, 990-94 (9th Cir. 2008)

7

The Denial Order did not explicitly identify which aspect
of 42 U.S.C. § 16911’s definition of a “sex offense” it relied
upon in determining that Price’s ABHAN conviction constituted a
sex offense.

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(concluding that court should apply noncategorical approach to
determination

of

age

of

victim

under

cert. denied, 555 U.S. 1088 (2008).

42

U.S.C.

§ 16911(7)),

We agree with those courts

of appeals and are satisfied to apply the circumstance-specific
approach to our resolution of this appeal.
a.
First, the text, structure, and purpose of the relevant
SORNA

provisions

show

circumstance-specific

that

approach

Congress
to

intended

apply

to

an

for

the

analysis

of

subsection (7)(I).

The Supreme Court has repeatedly analyzed

the

in

specific

terms

Congress

intended

apply.

For

for

example,

federal
an

statutes

element-

the

Court

or
has

to

determine

fact-based
interpreted

whether

approach
the

to

words

“conviction” and “element” to indicate that Congress meant for
the statutory definition to cover a generic offense, implicating
the categorical and modified categorical frameworks.

See, e.g.,

Taylor, 495 U.S. at 600-01 (reasoning that Congress’s use of
words “conviction” and “element” in Armed Career Criminal Act,
18

U.S.C.

§ 924(e),

supports

categorical

approach).

By

contrast, where a statute contains “language that . . . refers
to specific circumstances” or conduct, the Court has determined
that

Congress

approach’s
offense.

more

meant

to

searching

allow
factual

the
inquiry

See Nijhawan, 557 U.S. at 37.
16

circumstance-specific
concerning

a

prior

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The

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language

and

Pg: 17 of 26

structure

of

§ 16911

underscore

the

proposition that an analysis of subsection (7)(I) requires use
of

the

approach. 8

circumstance-specific

referenced
(5)(A)(i),
sexual

the

“elements”

providing

act

or

that

sexual

of

the

one

such

contact

Congress

offense
element

with

expressly

in
must

another.”

subsection
involve
But

“a

neither

subsection (5)(A)(ii) nor its extension at subsection (7) refers
to

“elements.”

Congress

That

drafted

contrasting

subsections

terminology

(5)(A)(ii)

and

indicates
(7)

to

that

cover

a

broader range of prior offenses than those reached by subsection
(5)(A)(i).

See Jama v. Immigration & Customs Enforcement, 543

U.S. 335, 341 (2005) (“We do not lightly assume that Congress
has

omitted

from

its

adopted

text

requirements

that

it

nonetheless intends to apply, and our reluctance is even greater
when Congress has shown elsewhere in the same statute that it
knows how to make such a requirement manifest.”).

Similarly,

8

Repetition sometimes being helpful, 42 U.S.C. § 16911
defines a “sex offense” at subsections (5)(A)(i) and (5)(A)(ii)
as follows:
(i) a criminal offense that has an element involving a
sexual act or sexual contact with another; [or]
(ii) a criminal offense that is a specified offense
against a minor.
Additionally, a “specified offense against a minor” is defined
at subsection (7)(I) to include “[a]ny conduct that by its
nature is a sex offense against a minor.”

17

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subsection

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(7)(I)’s

Pg: 18 of 26

explicit

reference

to

the

“conduct”

underlying a prior offense, as well as the “nature” of that
conduct, refers to how an offense was committed — not a generic
offense.
thus

See Nijhawan, 557 U.S. at 37-39.

indicates

that

circumstance-specific
subsection (7)(I).
The

Congress
analysis

intended

be

The text of SORNA
that

applicable

the

with

broader

respect

to

See Dodge, 597 F.3d at 1354-55.

purpose

of

SORNA

also

circumstance-specific

approach

subsection

Although

(7)(I).

supports

and

our

subsection

the

use

of

interpretation
(5)(A)(i)

a
of

includes

certain prior offenses without regard to whether the victim was
a

child

or

an

adult,

subsections

(5)(A)(ii)

applicable only where the victim was a minor.

and

(7)

are

Through SORNA,

Congress sought “to protect the public from sex offenders and
offenders against children,” and was responding “to the vicious
attacks by violent predators.”

42 U.S.C. § 16901.

In light of

SORNA’s focus on children, Congress’s use of broader language in
defining a “sex offense” for victims who are minors makes clear
its

intention

apply.

that

the

circumstance-specific

approach

should

The Supreme Court reached a similar conclusion in United

States v. Hayes, 555 U.S. 415, 426-27 (2009), where it analyzed
a statute criminalizing firearm possession by persons convicted
of a “misdemeanor crime of domestic violence.”
Congress

intended

to

close

loopholes
18

and

Observing that

apply

the

statute

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broadly to confront domestic violence, the Court reasoned that
the legislative history supported use of a factual analysis on
the specific issue of a domestic relationship.

See id.

We thus

agree with the Eleventh Circuit’s well-reasoned conclusion in
Dodge that the text and purpose of SORNA demonstrate Congress’s
intention
utilized
(7)(I).

that
in

an

the

circumstance-specific

analysis

of

the

approach

applicability

of

should

be

subsection

See Dodge, 597 F.3d at 1352-53. 9
b.

Second, Sixth Amendment concerns that compel the judicial
use of the categorical approach in other contexts are simply not

9

We are also satisfied to reject Price’s contention that
the federal regulations interpreting SORNA, commonly called the
“SMART Guidelines,” are helpful to him here. See Office of the
Attorney
General,
National
Guidelines
for
Sex
Offender
Registration and Notification, 73 Fed. Reg. 38,030, 38,052 (July
2, 2008).
The SMART Guidelines address subsection (7)(I) by
using terms such as “convictions” and “element,” which could
indicate a preference for the categorical approach — had
Congress used them in the text of subsection (7)(I).
We need
not accord Chevron deference to those Guidelines, although Price
urges us to do so.
See Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (concluding
that,
where
federal
statute
is
silent
or
ambiguous,
administering agency’s permissible construction controls).
To
accept Price’s argument on that point, we would have to decide
that Congress’s use of the terms “conduct” and “nature” of that
conduct, combined with its omission of the word “element” in
subsections (5)(A)(ii) and (7), is ambiguous or silent as to the
proper method of analysis.
We would then have to decide that
the
SMART
Guidelines
provide
a
clear
and
reasonable
interpretation of those subsections. We are unwilling to accept
those propositions.

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In other situations — such as where a prior

present here.

conviction may trigger a sentencing enhancement, increasing a
defendant’s

—

the

Sixth

apply

the

categorical

punishment

reviewing

court

Descamps,

133

to

S.

Ct.

at

2288.

As

Amendment

requires

approach.

Descamps

a
See

explained,

the

categorical approach is essential in the context of a sentencing
enhancement, in order to ensure that a defendant’s punishment is
not increased on the basis of facts that were not found by a
jury.

See id.

And “the only facts the court can be sure the

jury so found are those constituting elements of the offense —
as

distinct

circumstances.”
Price

from

amplifying

but

legally

extraneous

Id.

argues,

however,

that

the

Sixth

Amendment

also

requires use of the categorical approach in an analysis of a 42
U.S.C.

§ 16911(7)(I)

issue,

in

order

to

ensure

defendant was, in fact, convicted of a sex offense.
point,

the

Supreme

Court’s

Nijhawan

decision

is

that

the

On that

instructive.

There, the Court considered whether the categorical approach was
required by the Sixth Amendment to be used in the determination
of a loss amount in a deportation proceeding.

The petitioner

argued that the loss-amount finding could lead to a more severe
sentence in a criminal proceeding for illegal reentry, and thus
contended

that

the

Sixth

Amendment

required

categorical analysis with respect to loss amount.
20

use

of

the

See Nijhawan,

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557 U.S. at 40.

Pg: 21 of 26

The Court disagreed, reasoning that “the later

jury, during the illegal reentry trial, would have to find loss
amount

beyond

a

reasonable

constitutional concern.”
Here,

even

doubt,”

thereby

“eliminating

any

Id.

applying

the

circumstance-specific

approach,

Price was entitled to go to trial and have a jury determine
beyond a reasonable doubt whether his York County conviction was
for

a

sex

Amendment

offense
right,

under
however,

SORNA.

Price

when

he

§ 2250(a) offense in federal court.

gave

pleaded

up

that

guilty

Sixth

to

the

See United States v. Ruiz,

536 U.S. 622, 629 (2002) (observing that, by pleading guilty,
defendant

“forgoes

accompanying

not

only

constitutional

a

fair

trial,

guarantees,”

Amendment right to a jury trial).

but

also

other

the

Sixth

including

Had Price gone to trial in

the District of South Carolina, the prosecution would have borne
the burden of proving, beyond a reasonable doubt, that he had
been

previously

element
examined

of

18

the

convicted
U.S.C.

evidence

of

a

sex

§ 2250(a).
presented

offense

The
to

it

jury

—

an

would

concerning

essential
thus
the

have
facts

underlying Price’s 2010 ABHAN offense, and then decided whether
that evidence satisfied SORNA’s definition of a “sex offense.”
2.
In sum, we conclude that Congress intended for reviewing
courts

to

utilize

the

circumstance-specific
21

approach

to

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determine whether a prior conviction was for a sex offense under
SORNA, within the meaning of 42 U.S.C. § 11691(5)(A)(ii), as
expanded by subsection (7)(I).

We therefore affirm the district

court’s denial of Price’s motion to dismiss the indictment.

II.
Price additionally assigned error to the district court’s
calculation
respect

of

to

contains

his

advisory

supervised

the

Sentencing

release.

applicable

Guidelines

Guidelines

supervised-release

range

section

with
5D1.2

provisions.

As

relevant here, subsection (a)(2) provides for an advisory range
of one to three years for a defendant convicted of a Class C
felony (such as a violation of 18 U.S.C. § 2250(a)), except as
provided by subsections (b) and (c).

Pursuant to subsection

(b)(2), the term of supervised release “may be up to life if the
offense is . . . a sex offense.”

Under subsection (c), the

“term of supervised release imposed shall be not less than any
statutorily required term of supervised release.”
The facts relating to Price’s sentence are straightforward.
Price’s presentence report (the “PSR”), which was accepted by
the district court at the sentencing hearing on March 14, 2013,
concluded

that

the

applicable

statutory

provision

required

imposition of a term of supervised release of five years to
life.

See

18

U.S.C.

§ 3583(k).
22

The

PSR

computed

Price’s

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advisory Guidelines range by first observing that the five-year
minimum term of supervised release required by statute fixed the
minimum advisory Guidelines range.

See USSG § 5D1.2(c).

The

PSR then determined that Price’s § 2250(a) conviction was for a
sex offense, and thus calculated the upper-end of the advisory
range

to

be

Consequently,

life,
the

applying

PSR

Guidelines

concluded,

5D1.2(b)(2).

advisory

Guidelines

range for supervised release was five years to life.

Price made

no objections to the PSR.
twenty-four

months

in

Price’s

section

The court then sentenced Price to

prison

and

imposed

a

life

term

of

supervised release, “with the provisio” that he could seek to
terminate supervision after five years if he complied with the
conditions of release.

See J.A. 115.

Price now argues that the district court erred in applying
Guidelines section 5D1.2(b)(2) to increase the upper-limit of
his advisory Guidelines range to a life term.

He maintains that

the offense at issue — failing to register as a sex offender in
violation of § 2250(a) — is not a “sex offense” under that
Guidelines provision.

When a defendant has failed to object on

a sentencing contention being pursued on appeal, the issue is
subject to plain error review only.
11 F.3d 426, 440 (4th Cir. 1993).

See United States v. Grubb,
To satisfy such a review, “we

must find that (1) an error was committed, (2) the error was
plain, and (3) the error affected the defendant’s substantial
23

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rights.”
1996).
also

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Pg: 24 of 26

United States v. Ford, 88 F.3d 1350, 1355 (4th Cir.
If those “threshold requirements are satisfied, we must

decide

the

integrity,

fairness,

whether

or

proceedings.’”

error

‘seriously

public

affect[ed]

reputation

of

the

judicial

Id. at 1355-56 (quoting United States v. Olano,

507 U.S. 725, 736 (1993)).
Our Court decided the precise issue raised by Price only a
few weeks ago in United States v. Collins, 773 F.3d 25 (4th Cir.
2014).

Judge

Floyd’s

decision

recognized

that

a

clarifying

amendment to the Guidelines, effective November 1, 2014, makes
clear that “failing to register as a sex offender under SORNA is
not a ‘sex offense’ for the purposes of the Guidelines.”
32.

Thus,

Guidelines

was

range

5D1.2(b)(2).
effective

Price

not

for

Moreover,

November

1,

subject

to

supervised
a

second

2014,

the

enhanced

advisory

under

section

release
clarifying

establishes

Id. at

amendment,

that,

where

also
the

statutory minimum term of supervised release is greater than the
advisory Guidelines range, section 5D1.2(c) operates to create
an advisory term of a “single point” at the statutory minimum.
Id.

The

phrase

“single

point”

refers

to

a

Guidelines

recommendation of a specific sentence, rather than a range.

See

United States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013)
(“[T]he

properly

[defendant’s]

calculated

offense

appears

advisory
to
24

Guidelines

actually

be

a

‘range’
point:

for
five

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years.”).

Filed: 02/03/2015

As

a

result,

the

Pg: 25 of 26

Guidelines

recommend

that

Price

receive a five-year term of supervised release, rather than a
term within a range of five years to life.
In light of our Collins decision, Price has shown plain
error that entitles him to relief.
that

the

district

Guidelines
Second,

range

court’s
as

because

the

to

First, Collins establishes

calculation

supervised

issue

of

Price’s

release

concerning

the

was

advisory
erroneous.

Guidelines

range

calculation has been resolved in this Court, the error is plain.
See Henderson v. United States, 133 S. Ct. 1121, 1130 (2013)
(concluding

that,

“whether

a

legal

question

was

settled

or

unsettled at the time of trial, it is enough that an error be
plain

at

quotation

the
marks

time

of

appellate

omitted)).

consideration”

Third,

the

(internal

calculation

error

affected Price’s substantial rights because the record indicates
that the erroneous calculation of the advisory Guidelines range
caused him to be sentenced to a more severe term of supervised
release.

See Ford, 88 F.3d at 1356 (“The error clearly affected

[defendant’s] substantial rights because the extra points caused
[him]

to

be

sentenced

at

a

more

severe

guideline

range.”).

Finally, “sentencing a defendant at the wrong guideline range
seriously affects the fairness, integrity, and public reputation
of the judicial proceedings.”

Id.

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We thus conclude that the district court’s calculation of
Price’s advisory Guidelines range concerning supervised release
was plainly erroneous and that the error should be recognized
and corrected.

We therefore vacate and remand for resentencing

on the supervised release question.

III.
Pursuant to the foregoing, we affirm Price’s conviction for
failing to register under SORNA, vacate the supervised release
sentence, and remand for such further sentencing proceedings as
may be appropriate.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

26